When Judge Aileen M. Cannon presides over a hearing on former President Donald J. Trump’s small secret documents, she will spend the day considering well-trod arguments about arcane legal issues in the unorthodox process.
It will be the latest example of how unusual case handling has now become business as usual.
Over the past few months, Judge Cannon, who was appointed by Mr. Trump in his final days in office, has made several decisions that have sparked discovery and criticism among legal scholars after the case. Many of her rulings, on a variety of topics, have been confusing, often showing her willingness to give serious hearings to far-reaching issues that Mr. Trump’s attorneys are trying to defend.
The issue that will be discussed on Friday in Federal District Court in Fort Pierce, Fla., is a motion by the defense to dismiss the charges in the case on the grounds that Jack Smith, the special counsel who filed last spring, is not valid. funded and appointed.
The defense has argued that Mr. Smith was not appointed to the position by the president or approved by the Senate like other federal officials, and that Attorney General Merrick B. Garland, who gave him the job, did not have the legal authority to do so. self.
Deputy Mr. Smith has argued that under the appointment clause of the Constitution, agency heads like Mr. Garland have the authority to name “inferior officials” like special counsel to act as subordinates.
And while the subject of the hearing seems a little technical, the most unusual thing is that it happened.
Going back to the early 1970s, courts have repeatedly rejected attempts by Mr. Trump to question the legality of independent prosecutors. That has included the Supreme Court upholding the appointment of Leon Jaworski, one of the special prosecutors who investigated the Watergate scandal, in a decision that mainly focused on the issue of President Richard Nixon’s claims of executive privilege.
The judges also sought to disqualify special counsel Robert S. Mueller III, who is investigating ties between Russia and Mr. Trump’s 2016 campaign, and David C. Weiss, who has brought two criminal cases against Hunter Biden, the son of President Biden. .
Despite this record, however, Judge Cannon has decided to consider the constitutionality of Mr. Smith’s appointment anew – and not on the merits of a written brief, but rather in an expansive hearing that will spill over two days. The process may go beyond the normal process of merely making objections and may include, as the judge wrote, “the presentation of evidence,” although it is not clear what evidence is meant.
In another unusual move, Judge Cannon allowed three lawyers who filed what are called amicus or friends-of-the-court to argue before him every 30 minutes. While these outside parties – called “amici” – are generally allowed to make their case directly to a judge in an appeals court like the Supreme Court, this is not standard practice in the courts.
“The fact that Judge Cannon granted amici’s request for oral argument suggests that he is seriously considering constitutional arguments against the appointment of special counsel,” said Joel S. Johnson, an associate professor at Pepperdine Caruso School of Law.
One of the most striking aspects of Judge Cannon’s tenure is that he has largely ignored the public practice in the Southern District of Florida, where he sits, from the trial judge handing off the action motion to the judge judge attached to the case.
Judge Cannon has not delegated any motion to the judge in this case, Bruce E. Reinhart. And Judge Reinhart knows the case well, having approved the search warrant used by the FBI two years ago when agents descended on Mar-a-Lago, Mr. Trump’s Palm Beach home, and took away classified items central to the case .
Even before Mr. Trump was indicted last June on charges of illegally withholding classified documents after he left office and then thwarting the government’s repeated attempts to retrieve them, Judge Cannon made the unusual move to insert himself into the case unnecessarily.
After the FBI searched Mar-a-Lago, it barred federal prosecutors from using evidence gathered from Mr Trump’s estate until an independent arbitrator sorted the material as privileged. The decision was quickly overturned with a harsh rebuke from the appeals court that was against him.
In recent months, Judge Cannon has continued in much the same vein, making some quizzical decisions or just as often put off making them at all.
In February, for example, he surprised observers of the case when he agreed to let Mr. Trump’s lawyers reveal the names of some government witnesses in a planned deposition. Deputy Mr. Smith, fearing for the safety of the witness, asked him to revisit his decision, which he finally did.
One month later, the judge issued another baffling order, asking the defense and the prosecution to submit a draft of his instructions to the jury that apparently used one of Mr. Trump’s main defenses in the case.
The order was unusual because questions about jury instructions are usually thrown out during pre-trial hearings and at that time Judge Cannon had not set a trial date.
It is even more strange because by appearing to defend Mr. Trump, the judge seems to encourage the jurors to finally acquit the former president or to open the possibility that he himself could acquit him at the end of the process by declaring that the government. has failed to prove a case.
Most recently, Judge Cannon held a hearing to consider giving two of Mr. Trump’s defendants, Walt Nauta and Carlos De Oliveira, known as a bill of particulars, a detailed recitation of the charges added to the indictment.
These documents are rarely provided to criminal defendants. And while Judge Cannon ultimately denied the request, his decision to open the courtroom for a hearing on the issue in the first place was unusual, as other district judges (or magistrate judges) often decide such small pretrial matters based solely on court filings. . However, in this case, Judge Cannon has made the hearing the norm.
Last month, Judge Cannon issued an order formally canceling the May 20 trial date in the case. While judges are happy with the timing of cases and don’t generally have to justify their scheduling decisions, Judge Cannon cited a strange authority to end the trial: a 2013 essay titled “The National Security Trial: A Judge’s Perspective.”
The author is TS Ellis III, a respected former attorney who spent many years in the Eastern District of Virginia. But it is not uncommon for judges to cite informal writings as the basis for decisions rather than relying solely on case law.
“It’s an interesting sign of the work that went into writing this decision,” said Tracey E. George, a professor at Vanderbilt Law School. “Or less work, less care.”
